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was entitled to under the settlement made upon her marriage, all and every sum and sums of money, property, estate, and effects given and bequeathed to her, under the name of Margaret Forbes, by his will.
At the time of making his will, the testator had, beşides the £50 long annuities specifically bequeathed, other annuities of the same description; and he afterwards exchanged all his long annuities for new annuities ; by which exchange he made a profit by way of bonus, amounting to £100. The term for which the new annuities were granted, was shorter than the term of the long annuities by a quarter of a year.
Subsequently to this transaction, the testator made another codicil, by which he confirmed his will and former codicil. The question in the cause was, whether the widow was entitled to the £50 new annui. ties purchased with the produce of the £50 long annuities given to her by the will.
Mr. Bickersteth and Mr. Lloyd, for the widow.
THE MASTER OF THE ROLLS. [Sir JOHN LEACH.] The law is settled that a legacy is adeemed if the specific thing do not exist at the testator's death. The testator truly described the specific gift when he made his will, and there can be no relief upon the ground of mistaken description.
IN RE BRIDLE.
(Reported 4 C. P. D 336.] APPEAL from the County Court of Dorsetshire. Petition by Louisa Bridle, asking for the payment out of court to her of £200.1
John Bridle died in 1877. By his will, made in 1872, he bequeathed to the petitioner the mortgage of £200 which he had secured to him on a mortgage of premises in Melcombe Regis. The petitioner, against the objection of the executors of John Bridle's will and of the residuary legatees thereunder, introduced evidence that in 1873, the mortgage above mentioned was paid off ; that John Bridle paid the mortgage money into the bank of Williams & Company; that he had a regular account at that bank; that he did not pay this money into his general account, but had it entered in his name to a separate account, which he opened with the bank for that purpose ; that he received a separate pass-book ; that he handed this pass-book into the custody of the petitioner, stating to her, when he did so, that it was the money he had received from the mortgage, and that she was to keep the book, as he had willed the money to her, for her to receive it after his death, and
1 The following abbreviated statement is substituted for that in the report.
stating that it would show that the money was for her, and would do away with the necessity of altering his will in consequence of the mortgage being paid off; and that the £200 remained intact in the bank down to the death of John Bridle, he only drawing the interest from time to time, and the petitioner retaining possession of the passbook. This evidence was uncontradicted. Williams & Company paid the money into a post-office savings bank in the name of the registrar of the County Court to await the decision of the court.
The judge ordered the costs of all parties to be paid out of the £2,000, and the balance to be paid to the petitioner. The executors and residuary legatees appealed.
Bethell, for the appellant.
DENMAN, J. The testator by his will bequeathed to the petitioner “ the mortgage debt of £200 which he had secured to him on a mortgage of premises in King Street, Melcombe Regis, belonging to William Hardy.” It is impossible to read those words without seeing that the obvious intention of the testator was to give her the mortgage itself. Has there, then, been an ademption? That depends upon the rule stated by Lord Hardwicke, C., in Humphreys v. Humphreys, 2 Cox, C. C. 184, where he said that “the only rule to be adhered to was, to see whether the subject of the specific bequest remained in specie at the time of the testator's death, for, if it did not, then there must be an end of the bequest; and that the idea of discussing what were the particular motives and intention of the testator in each case in destroying the subject of the bequest, would be productive of endless uncertainty and confusion.” In all the cases relied on by Mr. Cutler, the language of the will was general, and no one of them conflicts with the rule there laid down, that, in the case of a specific bequest of a thing which has ceased to exist during the lifetime of the testator, the legacy is adeemed.
LINDLEY, J. I am of the same opinion. The first question here is what was bequeathed to Louisa Bridle. It is a bequest of a mortgage,
- a specific legacy. The only other question is, where is it? It is not to be found ; and there is an end of it. In all the cases relied on by Mr. Cutler, there was a bequest of something which at the death of the testator could be found. This doctrine is as old as the case of Ashburner v. Macguire, 2 Bro. C. C. 108, where Lord Thurlow, C., says: " As to the ademption, one maxim has gained so much ground as to have been a governing rule, and has been recognized by Lord Talbot and Lord Hardwicke. It is that, where a debt is bequeathed, and is afterwards extinguished by the act or concurrence of the testator, as by demand or suit, the legacy is adeemed; but, if paid in without suit or demand, there is no intention to adeem: and there are innumerable authorities that a legacy of a debt is not adeemed by a voluntary payment. Lord Camden, in Attorney-General v. Parkin, Amb. 566, espressly exploded this distinction: so did Lord Macclesfield. I am
er, the lanty and control the be
inclined to adopt their opinions, because I can find no ground for the distinction but a passage in Swinburne, $ 20, p. 7, 6th ed., p. 548. But I doubt if the authors cited by him support him. Godolphin, Orphan's Leg., 4th ed., p. 434, referring to the same books, states the rule differently; and so have other writers. By the civil law it was competent for a man, after he had changed the subject matter of a specific legacy, to declare by his conduct that such a change was an ademption. The case put is of a gold chain which the testator, after having bequeathed it by his will, converts into a cup: the legacy is not adeemed, because the cup might be restored to its former shape. This has not been adopted by our law. There is no ground to say that, after a legacy is extinguished, a man by his conduct may revive it. It is contrary to common sense; as appears by the instance put. The gold chain may have been given as a legacy because it had been long in the testator's family. If it be afterwards converted into a gold cup, the reason for giving it ceased.” And see the judgment of Lord Thurlow in Stanley v. Potter, 2 Cox, C. C. 180, where it was held that a bequest of a debt is adeemed by the debt being paid to the testator in his lifetime, whether the payment be compulsory or voluntary, or whether the sum be expressed in the bequest or the debt bequeathed generally. For these reasons, I am of opinion that the petitioner is not entitled to the £200, and the judgment of the County Court judge must be reversed, with costs.
• Judgment reversed." 1 See Blackstone v. Blackstone, 3 Watts, 335 (1834).
Note. On the ademption of the legacy of a lease by its renewal, see Abney v. Miller, 2 Atk. 593 (1743); Carte v. Carte, Ambl. 28 (1744).
A specific legacy is not adeemed by a change of investment ordered but not effected at the time of the testator's death. Basan v. Brandon, 8 Sim. 171 (1836).
A testator and chattels which he had specifically bequeathed perished together at sea. Held, that the legatee was not entitled to the insurance money. Durrant v. Friend, 5 De G. & Sm. 343 (1852).
If a testator, after making his will containing a specific legacy, becomes lunatic, the legacy is adeemed, if the subject-matter is disposed of by order of court, Jones v. Green, L. R. 5 Eq. 555 (1868); In re Freer, 22 Ch. D. (1882); or, being a debt, is paid to his committee, Hoke v. Herman, 21 Pa. 301 (1853). But if the property bequeathed has been disposed of without authority, the legacy is not adeemed, if the property exists in specie, Taylor v. Taylor, 10 Hare, 475 (1853); or if its proceeds can be traced, Jenkins v. Jones, L. R. 2 Eq. 323 (1866).
On the ademption of an appointment under a power, see In re Johnstone's Settlement, 14 Ch. D. 162 (1880).
A testator bequeathed all notes of hand which were payable to him at the date of a codicil, January 5, 1849. The testator then held four notes, payable to himself, and signed by Samuel S. Hill and his brother. On February 24, 1849, these notes were taken up, Hill's brother was released at his own request, and four notes payable to the testator, signed by Hill and secured by mortgages, were given to the testator. The notes taken up and the notes given were for one and the same debt. Held, that the legacy was not adeemed. Ford v. Ford, 3 Fost. 212 (1851).
C. Ademption of Portions.
IZARD v. HURST.
(Reported Freem. C. C. 224.] The defendant's testator by his will gave his four daughters £600 apiece, and afterwards married his eldest daughter to the plaintiff, and
gave her £700 portion ; after that he makes a codicil and gives £100 · apiece to his unmarried daughters, and thereby ratifies and confirms his will, and dies; and the plaintiff preferred his bill for the legacy of £600 given to his wife by the said will; and the only question was, whether the portion given by the testator in his lifetime, should be intended in satisfaction of the legacy? And held [by Sir JOHN TREVOR, M. R.] that it should ; and agreed to be the constant rule of this court, that where a legacy was given to a child, who afterwards upon marriage or otherwise' had the like or a greater sum, it should be intended in satisfaction of the legacy, unless the testator should declare his intent to be otherwise ; and it was said the words of ratifying and confirming do not alter the case, though they amount to a new publication, being only words of form, and declare nothing of the testator's intent in this matter.
1 Cf. Leighton v. Leighton, L. R. 18 Eq. 458 (1874).
2 An earlier decision is Jenkins v. Powell, 2 Vern. 115 (1689). That an adeemed legacy is not revived by a codicil has been often held. Monck v. Monck, 1 Ball & B. 298, 306, 307 (1810); Booker v. Allen, 2 Russ. & M. 270, 300 (1831); Powys v. Mansfield, 3 Myl. & Cr. 359 (1837); Hopwood v. Hopwood, 7 H. L. C. 728 (1859); Langdon V. Astor, 16 N. Y. 9, 57 (1857).
“The ademption of a legacy of personal estate is not usually called revocation. When the term just mentioned is not used, the act is called satisfaction, payment, performance or execution. But when these terms are thus used, it is not quite in their ordinary sense ; for their primary relation is to some debt, duty or obligation resting absolutely upon a party, whereas a will, having no effect in the testator's lifetime, does not bind him to anything. The word ademption is the most significant, because, being a term of art, and never used for any other purpose, it does not suggest any idea foreign to that intended to be conveyed. It is used to describe the act by which the testator pays to his legatee, in his lifetime, a general legacy which by his will he had proposed to give him at his death. (1 Roper, 365, ch. 6.) It is also used to denote the act by which a specific legacy has become inoperate on account of the testator having parted with the subject. But that is immaterial here. Aside from the Statute, an advancement of a like sum, with intent to pay the legacy in question, would, in the understanding of every lawyer, be an ademption. Now, the Statute does not say anything, in terms, respecting ademptions, nor does it allude to the subject in any way, unless it does so in using the term revocation. To revoke is to recall what one has done or promised. A testator who concludes to anticipate a proposed testamentary gift cannot be said, by any just use of language, to revoke or recall it, when, so far from wishing to undo what he has done, he has concluded to do it sooner than
HOLMES V. HOLMES.
[Reported 1 Bro. C. C. 555.] HOLMEs the father, who was a jeweller, by his will dated in November, 1771, (amongst other bequests] gave his son £500; and £2,000 [on trust to be invested for) four unmarried daughters, [in equal shares of £500 each]: then gave his son the utensils of his trade (which were of trifling value) and gave the residue of his personal estate to his wife for life ; and after her death, he gave further legacies to his daughters : to some £500, and to others £1,000; and, if any surplus, to be divided amongst all his children who should be then living, (there being then he before intended. By a very loose and indeterminate use of language, anything which renders a bequest inoperative at the testator's death may possibly be called a revocation, and we are shown in the opinion referred to that there are instances where it bas been so used. Lord Macclesfield is reported to have said, in a case of double portions, that by the laws of all other nations, as well as of Great Britain, the last was a “revocation of the portion given by the will.' The reference to foreign laws shows that the word was used in a very general, and not in a strict or technical sense. It was not said that the will or any part of it was revoked, but that it was a revocation of the portion. It was in a very short opinion taken down by the reporter. (1 P. Wms. 681.) But Lord Eldon, in a more elaborate opinion, in a case of alleged double portions, used the same terms for the like purpose. After qualifying the gift inter vivos as an ademption half a dozen times, and as satisfaction still oftener, and alluding to an objection made at the bar, that if the testator had not intended that the legacy should be paid he would have altered his will, he adds : "The answer [to that objection) is, that the subsequent advance operates as a revocation, and therefore actual revocation is unnecessary. The meaning is not that the subsequent advance was in a proper sense revocation, but that it operated in that instance in the same way; as if he had said there was no need of his revoking it, as the ademption or satisfaction just as effectually extinguished it. (18 Ves. 155.) But there are a few cases in which judges have been called on to discriminate, in precise and accurate language, between ademption and revocation. Rosewell v. Bennet, 3 Atk. 77, already referred to, was the case of a legacy for a special purpose, which it was adjudged he had accomplished by an advance of money in the testator's lifetime. The defendant's counsel relied upon the Statute of Frauds and Perjuries. Lord Hardwicke said : “As this act of the testator after making his will is not a revocation of the will, but an ademption only of the defendant's legacy, I am of opinion that the plaintiff ought to be let into this evidence,' &c. (3 Atk. 78.) In Kirk v. Eddows, which has been cited, the defence was that the legacy had been adeemed in part. The Vice-Chancellor, Sir James Wigram, said : “The evidence sto prove his advancement] does not touch the will. It proves only that a given transaction took place after the will was made, and proves what that transaction was, and calls upon the conrt to decide whether the legacy given by the will is not thereby adeemed. An ademption of the legacy and not revocation of the will is the consequence for which the defendant contends. The Vice-Chancellor then referred to the judgment of Lord Hardwicke, above mentioned. (3 Hare, 519.) These two cases are just one hundred years apart, and connected as the last is by a reference to the first, they may he taken to show the sense of the English Chancery, during all that time, upon the distinction in question." – l'er DENIO, C. J., in Langdon v. Astor, 16 N. Y. 9, 39-42 (1857).